To Be A Better Mediator, Trust the Process.

If you’re an Alabama football fan (or, for that matter, a Bama hater), there’s a good chance you’ve heard Nick Saban talk about “the process” — the term he uses in describing his approach to building championship-caliber football players and teams. Despite recent evidence to the contrary 🙁, that process has served his program very well.

As an Adjunct Professor of Mediation at the University, I teach my students that mediation is a process. It has several distinct stages. Each stage is important to producing a successful outcome — and to my way of thinking, there really are no shortcuts.

In my experience, a successful mediation process includes the following stages:

Pre-Mediation — which may be conducted by telephone, in person, or through Position Statements.

Opening Session — which may be a full-blown session, an abbreviated one, or just a Meet and Greet.

Private Caucusing — during which, demands and offers are exchanged, brainstorming may occur, positions are tested, and each side’s strengths & weaknesses are discussed.

Narrowing the gap — During this stage, there’s a continued exchange of information and demands or offers.

Conclusion — during which, written agreements are prepared, or further discussion is initiated to determine what comes next next.

Follow-up — which is typically necessary only when the parties haven’t reached an agreement.

Example one: Short-circuiting the process. And the client’s best interests.

I recently led a mediation that had reached the private caucusing stage, and I was serving as Devil’s Advocate by conducting a little reality testing. One of the lawyers cut me off, saying, “We aren’t going there.” Out of respect for him (and since the mediation is ultimately “his process”), I backed off.

A number of my longtime clients and colleagues would contend that I should have ignored the rebuff. The lawyer and I discussed it later — and while I understand why he did what he did, I disagree with his reasoning.

In cutting me off, he hurt the process. Granted, we were able to settle the case, but I think his client would have benefited from the discussion I was planning to lead.

Example two: The process works

In another case, I felt strongly that the process — and the parties — would benefit by dedicating our opening session to a discussion of the case’s legal and factual issues. The lawyers disagreed with me, but nevertheless followed my suggestion. Later, they both told me that the opening session had been critical to getting the case settled.

Trust the process. And your mediator.

I’m assuming every mediation you handle involves a mediator chosen because of someone’s confidence in his or her skills, so let your mediator to do their job — and let the process work for you. That said, I’m not suggesting that you relinquish input in structuring the process. What I am suggesting is that you trust your mediator to do what they think will give the case the highest likelihood of settling.